Guantánamo Is Delaying Justice for 9/11 Families

By Julia E. Rodriguez

Nov. 13, 2017

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A section of the American detention center at Guantánamo Bay, Cuba.CreditCreditJohn Moore/Getty Images

During his presidential campaign, Donald Trump made a pledge to fill the American detention center at Guantánamo Bay with “bad dudes.” He brought up Guantánamo again on Nov. 1, a day after the Uzbek immigrant Sayfullo Saipov was arrested on a charge of killing eight people in a terror attack in New York. Mr. Trump said that authorities should send the suspect to the prison because the American justice system is a “laughingstock.”

But the next day Mr. Trump apparently changed his mind, indicating a preference for trying Mr. Saipov in New York. He said in a tweet that he’d “love” to send him to Guantánamo but “that process takes much longer than going through the federal system.”

Perhaps the president’s shift means he is questioning his earlier commitment to the unlawful and immoral experiment that is Guantánamo. He is correct in saying that the military commissions at Guantánamo Bay are painfully slow at administering justice.

Nearly two years ago, I sat behind a glass wall in the military courtroom in Guantánamo, a mere dozen feet away from the five men accused of planning the Sept. 11 attacks that killed my brother. Greg Rodriguez, my only sibling, was 31 and working as an information technologist at Cantor Fitzgerald in the north tower of the World Trade Center when the planes hit that day.

Since the hearings are being held abroad, the American government brings a small group of victim family members and first responders affected by Sept. 11 to each of the pretrial hearings, which take place about 11 times per year, for a week each. In December 2015, I was part of one such group.

In 2012, Khalid Shaikh Mohammed and four other men were arraigned and charged with planning and facilitating the mass murder of thousands of people, including my brother. Despite years of hearings, five legal teams and thousands of pages of pretrial motions, real justice remains elusive. We’re still waiting for closure.

Before my arrival on the naval base, I was aware of the controversies surrounding the trial, and even more so, the notorious detention center. Finally being there in person made it immediately clear for me: This system is irrevocably broken.

While at Guantánamo, I was extremely uncomfortable. Not only did I revisit the awful moments of Greg’s death far from home, on foreign soil in a military compound, but I was also forced to witness the bizarre legal proceedings.

The environs and mix of civilian and government-commissioned lawyers on both sides add unnecessary and wasteful complexity and confusion to court proceedings. There has never been a trial like this in American history — one in which defendants accused of civilian crimes are tried in military court, in an offshore prison and in a system that does not uphold human-rights standards for a fair trial.

Compounding the complexities, government prosecutors have played fast and loose with the constitutional requirements of the capital cases, at times rewriting the playbook for the court in real time, withholding discovery, and even engaging in problematic surveillance of the defense teams.

One of the overarching concerns is that any eventual verdict, should there be one, will not be seen as legitimate. Federal courts have overturned previous findings by the commission, so it’s very possible this could all be for nothing.

I desperately want to see a resolution to these years of legal uncertainty, but that seems unlikely. Sixteen years later, we’re still in pretrial proceedings and have been advised that there could be five to 10 years of more legal wrangling before the actual trial begins.

For years, human rights groups have correctly criticized the United States for continuing to operate a detention center and military commissions that do not meet constitutional or Geneva Convention standards. And at the same time, some Sept. 11 families, like my own, have spoken out against the military-commissions system. The prolonged process and dubious legal practices increase our pain.

And trying these men at Guantánamo is not cheap — American taxpayers are paying upward of $445 million per year just to keep the detention center operating for the remaining 41 inmates. Are we as a nation willing to pay even more to grow its population?

A decade and a half of political posturing, wild spending and the abandonment of our fundamental values in the rhetorical name of being “tough on terrorism” have yielded nothing for any of us.

The prison should be closed, the commissions shut down, and the defendants transferred to federal court. Though our criminal justice system needs reform, it has been able to resolve many federal terrorism cases more fairly and quickly than Guantánamo. Unfortunately, Congress has repeatedly blocked efforts to move the Guantánamo defendants to the United States for such a trial.

Any decision to keep Guantánamo open or to expand it will cement the stain on America’s human rights record and allow the broken military commissions system to continue to hobble along toward obscurity.

My family and others who lost loved ones that day deserve justice. And Americans deserve a resolution to the Sept. 11 case that lives up to our Constitution’s highest values.

Julia E. Rodriguez teaches history at the University of New Hampshire and is a member of September Eleventh Families for Peaceful Tomorrows.